PrawfsBlawg

Judicial immunity and other civil rights hurdles (Update)

Steve Lubet (Northwestern) writes in Slate about Judge Robert Benitez (S.D. Cal.), who ordered the marshall to handcuff the 13-year-old daughter of a defendant in a parole-revocation hearing and have her sit in the jury box; his intent, he explained, was to send a message: “So your dad’s made some serious mistakes in his life, and look at where it’s landed him. … And if you’re not careful, young lady, you’ll wind up in cuffs, and you’ll find yourself right there where I put you a minute ago.”

Lubet expresses concern that Benitez will incur no sanction for his actions. Life tenure means he cannot be removed from the bench other than by impeachment. The case was transferred to another, who reduced the 10-month sentence Benitez imposed. A judicial-misconduct complaint has been filed, but the sanctions are minimal--censure and perhaps an interruption of newly assigned cases.

As for civil remedies, Lubet says "He cannot be sued for damages, because he has judicial immunity for conduct on the bench."

But is the immunity issue that obvious? Immunity attaches to "judicial functions," performed not in the "complete absence of jurisdiction." That captures most conduct on the bench. But the conduct must relate to the conduct of judicial proceedings and control of the courtroom. But this may exceed even the broadest understanding of those concepts. Benitez was not maintaining order in the courtroom or ensure the proper conduct of judicial proceedings. He admits to "hoping" to get to the girl--not a party, witness, or other participant and only tangentially related to the proceeding--a "message" about how she should live her life. Above the Law called it a "bush league Scared Straight, which, despite the source, is a pretty good descriptor. Warning random teens about the danger of crime is not a judicial function; that it happens in court should not matter. The motive behind a function does not affect immunity--a judicial function performed for a racist purpose remains a judicial function. But the purpose of an action can affect whether it qualifies as a judicial function--an action that does not reasonably affect judicial proceedings cannot be judicial, even if a judge performs it.

Of course, judicial immunity is not the only hurdle the girl faces. Benitez is a federal judge, so any damages action falls under Bivens--and we know what that means. This presents a new context and thus an extension of Bivens since SCOTUS never allowed a claim against a federal judge. And the usual special factors will counsel hesitation before allowing the action--Congress never created a cause of action, the judicial-complaint system allows for alternate remedies, and a Bivens court will not want to chill other judges in managing their courtrooms in the future. And after Bivens comes qualified immunity and the absence of any precedent clearly establishing that judges should not order the handcuffing of courtroom observers without probable cause and for no legitimate judicial reason. Is the violative nature of this as obvious as leaving a detainee in a cold, feces-strewn cell or placing a prisoner on a hitching post for 7 hours? Who knows.

So Lubet is right that civil damages remedy are unlikely. But judicial immunity is the tip of that iceberg.

Update: Steve responds:

The leading SCOTUS case is Mireles v. Waco, 502 U.S. 9 (1991), which I considered when writing the essay (space limitations did not allow me to get into it). Mireles holds there is no immunity for actions taken in the complete absence of all jurisdiction. But the trial judge in Mireles had ordered the abusive seizure of a public defender who had missed a court call, and SCOTUS found that was not beyond all jurisdiction. I could be wrong, but my conclusion was that Benitez likewise had some jurisdiction over spectators in his courtroom, and especially over someone who had been invoked by the defendant as a reason for leniency – and thus as sort of a witness. She was in the courtroom to influence the outcome. Puente told the court that his daughter was in danger of drug use, so the judge had some jurisdiction to question or interview her about it, if only to determine whether to believe Puente’s assertion. Of course, his questioning was abusive, but that alone does not defeat judicial immunity.

Well, I would prefer being wrong about that, but as the abstract of the Mireles opinion put it, “That he may have made a mistake or acted in excess of his authority does not make the act nonjudicial.”

My reply (hey, my blog, my final word): We might distinguish Mireles because the order to the bailiff had a closer connection to courtroom management--the judge needed the attorney to get to court for things to proceed. I agree that Benitez could have questioned the girl, even in an abusive or threatening fashion; that would be judicial. Handcuffing her--for the purpose of teaching her a lesson rather than for determining whether to believe the defendant as part of the proceeding--is a difference in kind.

Finally, the cases distinguish actions "in excess of authority" from actions "in the clear absence of authority;" the former maintains immunity (as in Mireles), but the latter does not. Steve makes the best argument for why this is the former--she was there to influence the outcome of a proceeding and the judge can question that attempt. But the judge's statements of his purpose, to me, push this into the latter.

To be clear, I am not saying Lubet is wrong about judicial immunity. Only that it is more complex than the typical case of a judge misbehaving while conducting proceedings from the bench.

JOTWELL: Smith on Sohoni and procedural originalism

The new Courts Law essay comes from Fred Smith (Emory) reviewing Mila Sohoni, The Puzzle of Procedural Originalism, 72 Duke L.J. 941 (2023), which explores how originalism has not (yet) come for constitutional doctrines in civ pro, such as personal and subject matter jurisdiction.

It's all about the precedent

Jonathan Adler comments on universal vacatur in the student loan case. He gets at the fundamental (and overlooked) insight in this debate: The prospective non-party effects of a decision arise from precedent, never from the judgment. SCOTUS does not issue (or affirm) universal injunctions; its opinion affirming a particularized injunction in Case₁ binds other courts in future cases involving similar issues. The DC Circuit does not issue universal judgments; its opinion in Case₁ binds the circuit in future cases involving similar issues (where, Adler argues, Congress gives the D.C. Circuit exclusive jurisdiction). To the extent that disables regional circuits from imposing broader consequences, Congress chose that effect by creating a regional and hierarchical judiciary.

Departmentalism (not mentioned in the arguments or in Adler's piece) makes this compliance practical rather than legal. The executive follows precedent (at least within the circuit) because it chooses to do so, knowing it will otherwise lose when non-compliance returns to the D.C. Circuit.

Florida redefines defamation law

Continuing my discussion of horrible new Florida laws. Rocky and I discussed DeSantis' 2022 never-reduced defamation-reform plan. It has been introduced in the current session. I describe some of the provisions after the jump.

Two things remain from the original proposal (and why we discussed it in our SB8 articles): The bill has serious and obvious First Amendment defects (many First Amendment people would call it "blatantly unconstitutional"). And those constitutional defects cannot be raised or adjudicated in offensive pre-enforcement litigation, because they define the elements of a private right of action for damages; speakers must sue and raise the First Amendment as a defense. Some defamation defendants might have the option of removing the private action to federal court on diversity grounds, an option unavailable to SB8 defendants.

Here are the bill's lowlights, all of which should raise serious First Amendment problems.

• Statewide (or near-statewide) venue for defamation actions. One of the key ways SB8 supposedly stacked the deck.

• Fee-shifting for prevailing defamation plaintiffs, plus removing defamation action from offer-of-judgment fee-shifting. This runs against the trend of granting fees to prevailing defendants to deter performative defamation actions (even absent full application of a state SLAPP in federal court).

• Limits on when someone can become an accidental, involuntary, or limited-purpose public figure. In particular, non-elected public officials (read: cops)  do not become public officials solely by virtue of employment and no one becomes a public figure by denying accusations of wrongdoing. This is enables police officers involved in excessive-force incidents to use defamation suits to silence critics--they can go on a media tour to deny the allegations and neither their government job nor media access renders them public figures.

• Identifies situations in which actual malice is presumed. These include relying on "unverified anonymous reports," repeating something that is "inherently implausible," and failing to validate. The irony, of course, is DeSantis seeks to target the people who picked on Nick Sandmann, Kyle Rittenhouse, etc. But this language is more likely to enable claims by Dominion against election deniers and other conspiracy theorists who repeat nonsense that only a crazy person or reckless person could believe.

• An allegation that someone discriminated on all sorts of bases constitutes defamation per se, with statutory damages of $ 35k. This should not fly because such an allegation or report of an allegation may be opinion or hyperbole, either of which is protected.

• Where that allegation of discrimination is because of sexual orientation or gender identity, a plaintiff cannot prove truth if the defendant relied on religious or scientific beliefs. This exacerbates the viewpoint-discriminatory nature of most defamation. But it shows how the accusation of discrimination is non-provable opinion--both involve competing, non-falsifiable "beliefs" rather than facts. Nevertheless, it may have a chilling effect in reporting and reporting on widespread discrimination--especially around LGBTQ+ status--in the state.

• A statement by an anonymous source is presumptively false. And where the defendant refuses to disclose the identity of the anonymous source, the plaintiff (including a public figure or official, it appears) need only prove negligence.

As I said, each bullet point will draw serious First Amendment scrutiny and many should be declared invalid. Much depends on how much of the First Amendment defamation edifice is constitutionally compelled. That is, how much leeway does a state have to define the scope and application of actual malice in its defamation law and what limits does the First Amendment impose from above. For example, can a state shift the burden to prove truth in anonymous-source cases or does the First Amendment place the burden on the plaintiff? Can a state define who qualifies as a public official/public figure required to prove actual malice or does the First Amendment control?

Regardless, it again demonstrates that what Texas did with SB8 was not new; it reflected a specific application of a state's longstanding ability to define torts and private rights of action. Again, decry Florida's blatant disregard for free speech. Do not treat the process as unprecedented or problematic.

Making a hash of pre-enforcement offensive litigation

In Fund Texas Choice v. Paxton, a First Amendment challenge to three sets of Texas laws a purporting to prohibit funding and facilitating legal out-of-state abortions--SB 8, HB 1280 (a trigger law that took effect 30 days after Dobbs), and pre-Roe zombie laws. Some blame for the hash rests with justiciability doctrine, some rests with the district judge.

To demonstrate the hash, I will identify the key legal or mixed principles, then identify the court's holding in the case, then show where (I believe) it goes off the rails.

Legal Principles and Findings:

    • No public enforcement of SB8.

    • The attorney general lacks power to enforce pre-Roe laws; enforcement rests with local DAs. Nevertheless, Paxton made numerous public statements about his intent to enforce those laws.

    • The attorney general has the power to enforce HB 1280 and made numerous statements indicating an intent to enforce the law with respect to out-of-state abortions.

    • HB 1280 has no extra-territorial effect and the attorney general's public-but-informal hints and suggestions, falling short of a full statement of intent, do not overcome the law's text.

    • Texas repealed its pre-Roe laws by implication. Based on binding Fifth Circuit precedent and undone by legislative findings in SB8, the post-Roe regulatory scheme for legal abortion cannot co-exist with the pre-existing bans on virtually all abortions.

    • The court never analyzed whether enforcement of the pre-Roe laws violates either the First Amendment or the right to travel.

Conclusions:

    • Claims against Paxton dismissed for lack of subject matter jurisdiction based on lack of standing and sovereign immunity. Although the court does not specify, it appears to be for lack of standing and/or sovereign immunity. Because Paxton cannot enforce any of the challenged laws against plaintiffs' desired conduct (he cannot enforce pre-Roe laws and cannot enforce HB 1280 as to the plaintiffs' desire conduct), he is not a responsible executive officer and plaintiffs lack traceability and redressability.

    • Preliminary injunction granted against several named local DAs (although the court has not certified the defendant class of all DAs) from enforcing pre-Roe laws as to funding or facilitating out-of-state abortions.

Why this is all such utter nonsense:

    • Bickel defended standing and the "passive virtues" as eliminating unnecessary constitutional adjudication. But consider how much and how detailed the adjudication necessary to dismiss this case for lack of jurisdiction--to say that the court lacked the power to consider the constitutional validity of Paxton's conduct or the scope of the plaintiffs' constitutional rights. The court analyzed the attorney general's power under three sets of laws, the effect of the attorney general's grandstanding and bumptious threats, and the extra-territorial scope of new state law. But the real meaning of these conclusions (putting aside their normative correctness) should be substantive--Paxton's conduct does not and cannot violate the plaintiffs' rights because he lacks the power to impose any legal consequences on their conduct. No constitutional violation means no injunction. But the court had jurisdiction to analyze all of this.

    • Were this accurately treated as merits, plaintiffs could tailor a lawsuit such as this one. Paxton has been running around hinting about enforcing HB 1280 extra-territorially, even if he lacks the power to do so. It would benefit the constitutional system if plaintiffs could react to those hints by obtaining an express declaration that he cannot do so, whether because he lacks power under state law or because doing so would be constitutionally invalid. Instead, they have that analysis and those determinations, but without legal effect. (It might have precedential effect, as it is essential to the holding; but district courts cannot create binding precedent and jurisdictional holdings tend to carry less substantive precedential force as to any underlying constitutional issues.

    • The court drops the following footnote in dismissing the claims against Paxton:

While the Court dismisses Plaintiffs’ H.B. 1280 claims without prejudice, it recognizes that there may be certain situations where the statutory analysis changes. For example, the analysis might change if a local prosecutor imminently threatens charges for funding out-of-state abortions or an opinion from the Attorney General’s office declares it illegal. 

The court did not dismiss the claims against Paxton for lack of imminence, so I do not see why imminence has entered the mix. He dismissed them because HB 1280 unambiguously does not allow extra-territorial application. I do see why either of those events changes that conclusion. The court recognizes that Paxton is hinting at extra-territorial enforcement "for the deliberate purpose of deterring funds from facilitating out-of-state abortions." But if those hints and threats do not overcome unambiguous text, a local DA's more imminent and specific threat or a formal AG opinion should not do so. Either the executive position can overcome unambiguous text (in which case these claims against Paxton should proceed, based on his posturing) or they cannot (in which case the footnote is wrong).

    • If pre-Roe laws were repealed by implication, the claims against the DAs should have been dismissed on the same bases as the claims against Paxton. Repealed laws no longer exist as law, leaving the DAs nothing to enforce. A court cannot enjoin an executive from doing something he lacks the authority to do. DAs can no more enforce pre-Roe laws than Paxton can enforce HB 1280--in either case, no existing state law prohibits funding or facilitating out-of-state abortions and thus the target executives have nothing to enforce. In fact, the argument for lack of jurisdiction as to the DAs is stronger than as to Paxton. Paxton has an extant law he could enforce in the abstract, but the court interpreted it to be unenforceable in the current circumstances; the DAs have nothing but air.

    • Making even less sense, the court uses implied repeal as the sole basis to find likelihood of success on the merits and to grant the injunction. The court never discusses whether the pre-Roe laws violate the First Amendment or the right to travel; that the laws were repealed by implication makes them invalid and unenforceable.

    • The last point arises from the court treating impliedly repealed laws differently from expressly repealed laws, a unique category subject to unique analysis. But that framing makes no sense. Had the legislature repealed pre-Roe laws, the court would have dismissed for lack of standing (what I think should be merits, but same result); again, the lack of a law on the books leaves nothing to enforce and the court cannot enjoin the executive from what he cannot do. Had the law not been impliedly repealed, it would be a Dobbs-dezombified law; the court must consider whether the living law applies extra-territorially (the court says it does) and whether it violates the First Amendment or the right to travel (the court never says). Instead, impliedly repealed laws create a third thing--extant (thus potentially enforceable, giving plaintiffs standing) but per se invalid (thus obviating analysis of their constitutional validity). I have never seen anything like this and the court does not explain or justify this category of law.

How the case should have been resolved:

    • The court should have reached the merits as to Paxton enforcing HB 1280, a live law. There ought to be consequences for executive saber-rattling, even when ungrounded in state law, having the purpose and effect of deterring conduct that is lawful under state law and constitutionally protected. The court should have addressed whether the law, if applied extra-territorially as Paxton has threatened, violates the Constitution.

    • If pre-Roe laws were impliedly repealed, it should not have enjoined the DAs. If implied repeal remains an open question, then the court should have analyzed their constitutional validity before entering the injunction.

    • Someone in the comments to Volokh's post on the decision suggests the Fifth Circuit will certify the question of implied repeal to the Texas Supreme Court. That may be a good idea. But the district court's analysis cannot stand regardless of that court's decision. If the laws were impliedly repealed, the district court erred in enjoining enforcement. If the laws were not impliedly repealed, the district court never addressed or resolved the substantive constitutional issue, which the reviewing court ought not do for the first time.

Pretty bad all around.

JOTWELL: Thomas on Adams, et al. on open justice

The new Courts Law essay comes from Suja Thomas (Illinois) reviewing Zoe Adams, Abi Adams-Prassl & Jeremias Adams-Prassl, Online Tribunal Judgments and the Limits of Open Justice, 42 Legal Stud. 42 (2022).

Judge cannot certify appeal of prior order by prior judge in same case

From In re Sensipar Anitrust Litigation:

District Judge Leonard Stark issued an interlocutory decision. He was elevated to the Federal Circuit five days later and the case transferred to a different district judge, Colm Connelly. The defendant moved, unopposed, for a § 1292(b) certification for immediate appeal. Connelly holds he lacks authority to certify. Section 1292 speaks of a "judge" issuing a decision and certifying the § 1292(b) elements, which means the same judge must issue the order and certify; a different judge cannot certify, including in the same case. The key is that § 1292 does not use judge and court interchangeably; thus while both judges are the "court" hearing the case, they remain different judges for one order.

The textual point is well-taken, I suppose. At the same time, this cannot be the right answer. I know of no other statute or rule that gives a judge less-than-full control and power over a transferred case than had she been assigned the case from the outset. The answer may lie in a different textual point.

Section 1292(b) says that when the judge is of the opinion that an interlocutory order satisfies the elements of (b) and warrants immediate review, " he shall so state in writing in such order." In other words, the statute contemplates that the parties and court work out certification in advance and one order will resolve the underlying issue and certify for appeal. On that framing, this problem--Judge₂ certifying Judge₁'s order--never should arise because Judge₁ adjudicates and certifies in one order. Thus, Judge Connelly's interpretation, if correct, has no adverse consequences because it never arises.

In practice, however, parties argue appealability and the court certifies after the the target order. That happened here--Judge Stark issued the underlying order on March 11, 2022, Judge Stark was elevated on March 16, the case was reassigned to Judge Connelly, the parties briefed the certification motion, and Connelly decided the motion 11 months later. This practice is inconsistent with § 1292(b), to the extent the judge certifies in a subsequent order rather than "in such order" to be appealed. The court's interpretation, if right, now has absurd consequences--certification becomes impossible if something unexpected, even tragic, requires the case be transferred between the underlying order and the certification decision. And certification becomes impossible not only in a case such as this  (eleven months lapsed between original order and ruling on certification), but in a case in which things move quickly (Order on Monday, Judge₁ dies on Tuesday, case transferred to Judge₂ on Wednesday, certification decision on Thursday).

But we can apply textualism to a different piece of text. Taking (b) seriously and reconciling text and practice, a judge can certify subsequent to the underlying order--but must do so not through a new-and-separate order but by amending the original order to add the (b) findings. The power to alter or amend an order rests with the court, meaning any judge assigned the case can alter or amend any order, including the prior judge's order. Connelly thus could have issued an amended version of the March 11, 2022 order, fully repeating and adopting Stark's conclusion while adding the (b) certification. This makes the amended order of February 2023--containing the content of the March 11 decision--an order that Judge Connelly made and therefore can certify for interlocutory appeal.

I am curious what happens next. The denial of certification is obviously not final and appealable. But a determined defendant might seek mandamus on the issue, asking the Third Circuit to order Judge Connelly to grant--or at least consider, which he has not done--certification, because his failure to do so is clearly erroneous

JOTWELL: Kalajdzic on Tang on copyright class actions

The new Courts Law essay comes from Jasminka Kalajdzic (Windsor), reviewing Xiyin Tang, The Class Action as Licensing and Reform Device, 122 Colum. L. Rev. 1627 (2022).

Visitors sue Air and Space Museum, encounter Fed Courts doctrine?

Visitors to the Air and Space Museum sued the museum, agency, and several Doe officers, alleging that the officers forced them to remove hats with the logo "Rosary Pro Life" while visiting the museum; they allege free speech, equal protection, and RFRA violations and seek damages and injunctive relief. Eugene Volokh reports that the Museum admits this happened and that it should not have. He also argues that the free speech analysis is obvious here--the museum is a non-public forum in which officials can make reasonable content-based distinctions but not viewpoint-based distinctions (such as not promoting "equality").

But I am not sure we reach those merits:

    • Plaintiffs should lack standing for an injunction. The plaintiffs cannot show this will happen again in the immediate future. Not only is it unlikely they can show concrete plans to return to the museum. And they cannot show they will suffer this injury if they do return, given the museum's response and the seeming randomness of the officers' conduct.

    • This is an extension of Bivens--the Court has never allowed a free-speech claim. And the usual special factors arise--Congress should create causes of action and has not done so and, post-Egbert, agency disciplinary-complaint procedures offer sufficient mechanism for deterring misconduct. This is not a national-security case so that over-arching factor is absent. But lower courts emphasize the new single question of "Isn't Congress is better suited to balancing the costs and benefits of causes of action?" (to which the answer is always "yes") to reject actions outside national security.

    • RFRA provides a cause of action for suits against government officials, so plaintiffs do not need Bivens for their religion claims. But plaintiffs must show this was religious rather than speech discrimination--does the word Rosary on the hats mean the officers knew the message was religious and forced them to remove the hats because of that religious (as opposed to political or ideological) message?

    • If this is religious discrimination and/or they convince the Court that no special factors counsel hesitation, they must overcome qualified immunity. There is almost certainly no case law about making someone remove a hat because of its religious or political message in a museum. The court must fall back on general First Amendment principles, the sort of high-generality analysis courts usually reject. It might be interesting to see how the court uses the museum's mea culpa--does that show that it was clearly established that officers could not make visitors remove hats and other clothing because of the message?

Younger strikes again

Florida (naturally) leads the pack of red states trying to stop (likely First Amendment protected) drag shows. It is pursuing the Orlando Philharmonic Foundation in an administrative action for producing "A Drag Queen Christmas" in December; it seeks to revoke its business and alcohol licenses, premised on a drag show involving lewd, lascivious, and sexual activity. The state is threatening a similar action against the Broward County Performing Arts Center for a similar program. The Foundation should win, because drag show should be constitutionally protected, including for children. The pleading includes photos of the event, but it is hard to take the pleading's descriptions of the event seriously when comparing it to the photos.

But the case offers yet another example of the commonality of defensive litigation, including where the constitutional invalidity of the state's enforcement efforts is obvious. An administrative proceeding, subject to state judicial review, triggers Younger abstention; this case squarely fits the second Sprint category of a quasi-criminal civil action. And while politically motivated and designed to score cheap populist points (towards a presidential run), I doubt this qualifies for Younger's bad-faith exception.

More on Warren-DeSantis and the court's ill-advised analysis

I wrote last week about the district court decision in the lawsuit between the Hillsborough (FL) County DA and Florida Governor Ron DeSantis, arising from the latter suspending the former. I argued that the court made two legal mistakes: 1) Framing the case as DeSantis violating Warren's First Amendment rights in considering protected speech where he would have reached the same conclusion based on something other than protected speech and 2) Pronouncing that the suspension was inconsistent with state law while refusing on Eleventh Amendment grounds to issue an injunction ordering reinstatement. I also suggested Hinkle--whether intentionally or otherwise--provided Warren a weapon in the political controversy.

That last thing happened more quickly than I anticipated. Warren last Wednesday sent (and publicized) a letter to DeSantis urging the governor to voluntarily reinstate him. Warren frames the situation as follows: The court found as a matter of fact and law that the suspension violated the U.S. and Florida constitutions. Although not ordering Warren's reinstatement "in deference to federalism," the court called on DeSantis to "easily set [that violation] right" by recognizing that "the facts matter" and that he should not have removed Warren. DeSantis thus should follow his oath and obey the law by rescinding the suspension. This is a political stunt (as was the entire lawsuit), leading with the court's words as if they provide the final answer on these issues.

I explained where the court went wrong. But Warren's tendentious framing raises that error to another level.

The Eleventh Amendment (as courts apply it) does not create discretionary deference to federalism allowing a court to offer binding legal conclusions while declining to issue any legal remedy. It imposes a jurisdictional bar to adjudicating state-law issues. The court had no power or basis to consider the state-law validity of the suspension. It dismissed Warren's state-law claim as improper under § 1983/Ex parte Young. Nor were the state-law issues built into the federal issues. Adjudicating the First Amendment claim did not turn on the accuracy of the state law grounds--for purposes of whether DeSantis' decision rested on something other than Warren's protected speech, the question is whether DeSantis believed Warren adopted blanket non-prosecution policies, not whether DeSantis' beliefs were true or accurate.

Warren's letter treats the court's state-law analysis as akin to a declaratory judgment--the court issuing a jurisdictionally appropriate order that DeSantis violated state law, but finding that declaration sufficient and declining to issue further relief in deference to competing values. That is, the court provided a valid statement of law designed to persuade the defendant to change his behavior going forward, while reserving the "strong medicine" of an injunction for discretionary reasons and with faith that DeSantis will comply with the decision. DeSantis must "follow the law" as the court declared it.

This is wrong.  The Eleventh Amendment strips courts of jurisdiction to issue all remedies, not only injunctions. The court had no more power to issue a DJ based on violations of a state-law rights than to issue an injunction based on a violation of state-law rights. That bar precludes any consideration of state law or whether DeSantis' conduct comported with the state constitution--the court acted beyond its power in making these pronouncements and they should have no legal force. Again, this goes beyond dicta--it is a court speaking words without the power to act as a court.

But those words provide Warren's first line of attack in the press and in politics.

JOTWELL: Shatzman on Fogel, Hoopes, & Liu on diversity in clerkship hiring

The new Courts Law essay comes from guest Aliza Shatzman, reviewing Jeremy Fogel, Mary Hoopes, and Goodwin Liu, Law Clerk Selection and Diversity: Insights from Fifty Sitting Judges of the Federal Courts of Appeals.

Jack Phillips loses on defense, no one cares

Jack Phillips and Masterpiece Cakeshop provide the response to complaints about SB 8 (and other "vigilante federalism" laws) that resist pre-enforcement offensive federal-court challenge and consign rights-holders to defensive litigation in state court--expecting the state court to properly vindicate federal rights or hoping for SCOTUS review at the end of the multi-stage process.

Phillips finds himself in that position, facing a private civil action under Colorado law from a transgender customer denied a custom cake. Phillips lost in the trial court and the court of appeals affirmed, concluding that the cake (pink on the inside, blue on the outside) carried no intrinsic message apart from how the customer planned to use it (a celebration of the anniversary of her m-to-f transition).*

[*] And Masterpiece did not know about that use when the customer ordered the cake and the store initially agreed to make it.

Phillips believes his constitutional rights are as obvious and as violated as those seeking reproductive care in the face of SB8 or trans athletes seeking to compete. Yet no one complains about Autumn Scardina using civil litigation against his (perhaps) protected conduct or acting as vigilante against Phillips. The difference remains that the people opposing SB8 and other vigilante laws disagree with his legal position and do not mind people suing him into oblivion. Procedure cannot turn on such substantive differences.

On the merits, this case bolsters my thoughts after the 303 arguments: These cases superimpose a complicity element on compelled speech. The messages made by the challengers--"Jack and Jack are getting married," "pink-and-blue cake"--carry no political message. It is what the customers do and say with that message after it is made--something untouched by the challengers--that matters. So the First Amendment argument must be that an anodyne, identical message is put to an end with which I disagree. That differs from the core compelled-speech case.

Bizarre (and arguably advisory and ultra vires) opinion in Warren v. DeSantis (Slight edit)

The case arises from Florida Governor Ron DeSantis suspending Hillsborough County (Tampa) State's Attorney Andrew Warren. The court held that DeSantis considered six things in suspending Warren--three impermissible under the First Amendment and three permissible under the First Amendment. DeSantis would have suspended Warren based on the latter permissible grounds had he not considered the former impermissible grounds; therefore Warren's retaliation claim fails under Mt. Healthy. DeSantis violated Florida law in suspending Warren, because those federally permissible grounds were impermissible under state law, because the facts did not show incompetence or neglect-of-duty. But the Eleventh Amendment* prohibits federal courts from granting relief against state officials for state-law violations. Thus, although the court makes a big production of announcing that DeSantis violated state and federal law, it grants no remedy and dismisses Warren's claims.

[*] Really the limits of § 1983, but that ship sailed.

This is a bizarre decision.

• I doubt it is proper for the court to say DeSantis "violated the First Amendment." Constitutional violations occur with adverse enforcement action, not with thoughts or ideas not acted upon. The adverse action here was suspending Warren. If DeSantis would have taken that adverse action regardless of anything related to Warren's protected speech, he did not violate Warren's constitutional rights, at least as we define the scope of the First Amendment in this context. Compare a racist cop who arrests a Black person on a charge for which he has probable cause; the arrest is valid because of probable cause, regardless of any racist ideas or statements the officer makes. We may disagree with that doctrine. But it, for the moments, defines when a government official violates someone's constitutional rights.

• The court should not have declared the state-law validity of the firing. This goes beyond mere dicta or even an advisory opinion. Warren brought a state law claim, which the court dismissed under Pennhurst (again, better if § 1983, but whatever). The propriety of the state-law reasons were not before the court. Worse, if the Eleventh Amendment, as elaborted in Pennhurst, strips courts of jurisdiction over state-law issues, the court pronounced on issues beyond its jurisdiction.

• I said the court should have abstained under Pullman and Hinkle's approach to the opinion confirms this. The case always turned on the suspension's state-law validity; the First Amendment provided a sideshow. The court did what Pullman seeks to avoid--passed on unnecessary federal constitutional issues in the face of controlling state-law issues.

• It is hard not to read this as a political shot for Warren to use in the media. He can wave the opinion and say a federal court backs his view that DeSantis ran roughshod over his First Amendment rights. It also represents a political shot at the Florida Senate, which will hold a "trial" on the state-law propriety of the suspension, affirming DeSantis' decision or reinstating Warren. Hinkle has created a detailed legal and factual record, particularly finding that DeSantis' insistence that Warren had a blanket non-prosecution policy was nonsense and that he knew (or at least should have known, had he looked) it was nonsense. This helps Warren in the press and in the public should he lose before the Senate. Warren can compare this opinion to any Senate decision finding the suspension warranted and use it to argue that the Florida Senate made an incorrect, politically motivated decision--"see, we know the Senate made a politically motivated decision, because here is a federal judge showing why the suspension violates federal state law." Hinkle hints at this motive by referring to the "heavily partisan Florida Senate."

GEICO can intervene over sex-in-car case

The story of the woman who sued her former partner for infecting her with HPV during a sexual encounter in his car gained attention in June. I offered the case as the latest example of journalistic malpractice in covering the court, where stories snickered about the prospect of a multi-million judgment over car sex, ignoring that the case involved a narrow procedural question--whether GEICO should have been allowed to intervene in the state action to affirm the arbitration award, without (at this point) considering whether sex is an ordinary use of a car triggering coverage..

The story returned to the news last week, when the Supreme Court of Missouri ruled that the trial court erred in denying intervention. GEICO moved within 30 days of receiving notice that it (rather than its insured) was the litigation target and before the trial court entered judgment; state law grants intervention as of right.

The case returns to the trial court, with GEICO able to argue that it is not required to cover. GEICO's federal DJ action, also seeking to avoid coverage, remains pending. Both courts must decide whether sex constitutes an ordinary-and-expected use of a car triggering insurance. Let the snickering resume.

JOTWELL: Tidmarsh on Hershkoff & Norris and democracy and jurisdiction

The new Courts Law essay comes from Jay Tidmarsh (Notre Dame) reviewing Helen Hershkoff & Luke Norris, The Oligarchic Courthouse: Jurisdiction, Corporate Power, and Democratic Decline, Mich. L. Rev. (forthcoming 2023), exploring how corporate power influences jurisdictional rules in ways that enhance corporate power and limit democracy.

No state standing in SB8 suit

Press release on the judge's ruling from the bench that standing requires a plaintiff directly affected by the provision of abortion services. This is remaining lawsuit of the three filed by "colorful" actors; the plaintiff is Felipe Gomez, a suspended Illinois lawyer who purports to support abortion rights.

This is largely moot, since Texas post-Dobbs banned abortion through criminal penalties and government enforcement. But it provides a nice coda to the SB8 story that has ended with a whimper. Rocky and I called the result, although we argued that Texas has a history of statutorily authorized private enforcement that complicates the analysis more than in federal court. It also reveals an irony in the debate over "bounty-hunter" laws--legislative efforts to deter disliked-but-constitutionally-protected conduct through the chill of random private litigation fail in the face of state judiciaries that interpret their constitutions to ape Article III. Further irony: California--which tried to create a "blue-state SB8" on firearms--allows broader "any person" standing than Texas (at least according to one trial judge) and other states that are trying this.

Uvalde lawsuit

Complaint here. I have been thinking about this inevitable lawsuit and the problems it will face--and I am not sure this complaint, as pleaded, avoids those problems. The main claim is substantive due process/bodily integrity. There are two ways to plead this claim based on third-party harms--state-created danger and special relationship. The complaint alleges both and both encounter problems.

As to the former, the Fifth Circuit (so far) refuses to recognize state-created danger as a basis for due process liability (the only circuit never to do so), although the complaint does not mention this fact.Maybe this is the case that would prompt a change, but I doubt it. So to the extent they premise liability and remedy on "Uvalde officials did a horrible job and allowed Salvador Ramos to do what he did," that theory is unavailable in the Fifth Circuit.

As to the latter, special relationship does not apply between schools and teachers and students, because their presence in school (unlike, e.g., prisons) is not involuntarily coercive. And law enforcement does not have a special relationship with the public or a general duty to protect. Plaintiffs offer two ways around this. First, by showing up and establishing a perimeter, police created a special relationship that did not previously exist. This raises tricky line-drawing problems. The theory is that police lack a general duty to protect but at some point they take enough affirmative steps to establish a special relationship and create that duty to protect--where, exactly, is that point? But this seems to be the best thing they have. The second theory is that police affirmatively prevented parents and others from helping out while police did nothing. But this does not describe inaction within a special relationship; it describes affirmative action to worsen a third-party-harm situation, which sounds in state-created danger (still unavailable in the Fifth Circuit) rather than special relationship.

Plaintiffs include claims for municipal liability against the school district for a custom or practice of noncompliance with safety regulations and against the city for failing to follow existing active-shooter protocols and failing to train/supervise officers on those protocols, which they "magnificently failed" to follow. Two things. First, there is an interesting puzzle here over the concept of policy and policymakers Uvalde had protocols--formal policies established by government policymakers--that police ignored; municipalities avoid liability when they can show that officers ignored or acted contrary to official policy. Plaintiffs attempt to avoid that by alleging that the acting police chief, the policymaker for law enforcement, created new policy by ignoring existing policy. Second, municipal liability depends on an underlying constitutional violation and injury to which municipal policy, custom, or failure-to-[blank] contributed. The immediate cause of the injury is the private shooter, which returns us to state-created danger (policies and failures as affirmative acts enhancing the shooter's ability to kill) not recognized in the Fifth Circuit or to special relationship that, as described above, does not fit seem to fit here.

Finally, they ask for an injunction basically compelling the school and the city to get its shit together as to school safety and active-shooter responses. They also ask to certify a class to get around the obvious standing problems. We will see if that works, given the unlikelihood of another shooting situation, no matter how bad the city's customs and practices.

I am putting the final touches on the third edition of my civil rights treatise, including new case-based problems. I may need to add this one.

JOTWELL: Campos on Francus on the Texas Two-Step

The new Courts Law essay comes from Sergio Campos (Miami), reviewing Michael A. Francus, Texas Two-Stepping Out of Bankruptcy, 120 Mich. L. Rev. Online 38 (2022), another discussion of the use of bankruptcy in mass tort.

Effective v. Enforceable

Further thoughts on the Georgia trial court and the idea that a law enacted contrary to binding judicial precedent never became a law:

The problem may be one of nomenclature and the conflation of two terms--when a law is effective and when a law is enforceable. My view is that a law is effective on the date the legislature indicates in the enrolled and signed bill. Constitutional litigation concerns whether a law is enforceable--and the judicial remedy from constitutional litigation is to stop enforcement of the challenged law, not to cause the law to cease being effective. Thus the Georgia court's fundamental error. Pre-Dobbs precedent did not cause the law to lack effect; it causes the law to be unenforceable. This, again, goes back to the source of the constitutional violation--the law itself or its enforcement.

The same nomenclature problems arose in the S.B.8 discussions in September 2021. People complained about SCOTUS' denying emergency relief allowing S.B.8 to take effect. But that is wrong. S.B.8 took effect on September 1, 2021, per the law's text. Denying emergency relief allowed S.B.8 to be, and remain, enforceable (through private lawsuits).

Georgia trial court rejects judicial departmentalism

A Georgia trial court declares Georgia's heartbeat ban constitutionally invalid underGeorgia's "void ab initio" doctrine--a law enacted contrary to binding judicial precedent never had any force or effect. While "on the books," the law never carried any force or effect. It "'is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office.'" It is "'in legal contemplation, as inoperative as though it had never been passed.'" The court adds that "an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void." There can be no zombie laws that "spring back to life" when precedent changes.

Obviously I disagree with this framing. The legislature did enact a law that is in effect in the state of Georgia. The law is not enforceable--or at least enforcement is certain to fail once the issue reaches the judiciary and the judiciary applies then-existing constitutional doctrine. Moreover, this approach presumes that a law violates the Constitution (in this case, the rights of pregnant people) by existing and thus the legislature violates the Constitution by enacting it. But the constitutional violation arises from the actual or threatened enforcement of the law, not from the law itself; the legislature does nothing wrong in enacting a  law. Put differently: The court says that the heartbeat ban "exist[ed] only on paper." But all laws exist only on paper. Their force and effect comes from actual or attempted enforcement--at which point the judiciary and controlling precedent come into play.

Here is the topper:

What does this ruling mean? Most fundamentally, it means that courts -- not legislatures -- define the law. This is nothing new, but it seems increasingly forgotten (or ignored): “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. 137, 177 (1803); see also Beall v. Beall, 8 Ga. 210, 219–20 (1850). If the courts have spoken, clearly and directly, as to what the law is, as to what is and is not constitutional, legislatures and legislators are not at liberty to pass laws contrary to such pronouncements. This does not, as the State protests, leave the legislative branch powerless in the face of “judicial supremacy run amok.” (Defendant’s Response at 1). To the contrary, “[t]he inherent powers of our State General Assembly are awesome.... [It] is absolutely unrestricted in its power to legislate, so long as it does not undertake to enact measures prohibited by the State or Federal Constitution.” Sears v. State of Ga., 232 Ga. 547, 553–54 (1974) (citation omitted). The void ab initio doctrine and its application to something like the LIFE Act properly cabins that broad legislative authority to set policy for our State and for the people who comprise it: do what you will, only do so within the bounds of the constitution that the courts have established.

If I were looking to give my students a definition of judicial supremacy, I could not do any better--the courts define the law, the Constitution means what the courts say it means, and the legislature must yield to the judiciary's constitutional understanding. The legislature's power is unrestricted unless the judiciary restricts it.

One criticism of judicial departmentalism (as Kevin Walsh framed it and as I have applied it to disputes about SB8 and universal injunctions) is that it collapses into judicial supremacy--because every dispute reaches court, the judicial view prevails at the end of the day. This case demonstrates the difference--judicial departmentalism leaves the legislature a modicum of power to engage in the legislative process and to define the state's statute books--however the laws on those books may or may not be enforced.

Besides being a bad approach to constitutional law, this approach may prove to much and raises a number of open issues:

    • Must legislatures repeal zombie laws and ensure the statute books are consistent with the state of judicially declared constitutional law? Alternatively, must they reenact zombie laws when the Court changes its constitutional understanding? If a new law contrary to judicial precedent never gains legal effect, does an existing law contrary to new judicial precedent lose all legal effect? The court's logic is yes--the zombies never "spring back to life." So a new law is required for any effect.

    • How can the political branches seek to change judicial precedent? There must be a law and actual or threatened enforcement to present a case in which the judiciary could change precedent. So Mississippi succeeded in getting the Court to overrule Roe by enacting a new law and triggering the litigation through which the Court changed precedent. But if the new law is void ab initio, the court never reaches the substantive constitutional question (or must reach out to do so when unnecessary, which we say courts should not do) because the new law never was law. And that will be the case for any new law. And if I am right about the prior bullet point, the state cannot use existing laws for the challenge, because those lost all force and effect.

Argument in Talevski

Here is my recap of Tuesday's argument in HHC v. Talevski, considering whether any Spending Clause enactments can be enforced through § 1983 litigation. I remain bad at predictions, but best guess: The Court will not categorically reject § 1983 enforcement, perhaps unanimously. But a majority will hold that FNHRA precludes private enforcement (the SG's position) because of the statute's comprehensive administrative scheme.

(Guest Post) The Mallory Argument on Personal Jurisdiction via Corporate Registration

The following is by Rocky Rhodes (South Texas) and Andra Robertson (Case Western); this is the latest in a series of posts on the case. I have been focused on elections and Tuesday's other argument, but I hope to add something  to this discussion later this week.

The Supreme Court heard argument yesterday in Mallory v. Norfolk Southern Railway Co., which addresses the constitutional limits on states asserting jurisdiction over a nonresident corporate defendant that registers to do business in the state. Under 42 Pa. C.S. § 5301, state courts obtain “general jurisdiction” over a nonresident corporation registering to do business. Mallory claims that this statute supports Pennsylvania’s jurisdiction over his FELA claim against his employer Norfolk Southern Railway because the railroad is registered to business in the state—even though Mallory is a citizen of Virginia, the railroad is incorporated with a then-principal place of business in Virginia (now in Atlanta, Georgia), and his claim arose from his alleged exposure to carcinogens in Virginia and Ohio. The railroad counters that the exercise of personal jurisdiction violates the Due Process Clause and the unconstitutional conditions doctrine. We had a series of posts on this case on Prawfs shortly after certiorari was granted last April (see here, here, and here), and Howard invited us back to report on the oral argument and the briefing in the case. We’ll highlight the primary positions of the parties, the Justices who pushed back, and some interesting tidbits for our fellow jurisdictional aficionados.

Originalism and the Historical Archival Brief

Mallory’s primary argument is that the Pennsylvania statute is constitutional under the original public meaning of the Fourteenth Amendment. His merits brief includes an exhaustive compilation of state statutes during the 1800s tying corporate registration to a state’s adjudicative jurisdiction, with the first of these statutes appearing in the 1820s. This listing is not a surprising strategy for a plaintiff confronting a Court that has a reputation for being sympathetic to business interests while also (at least sometimes) singing the praises of originalism. Such historical archival compilations may become as commonplace in constitutional cases before the Roberts Court as the Brandeis brief was during the Lochner era.

But several Justices questioned the impact of these statutes, as did the railroad. Justice Barrett doubted that all the listed statutes were on point—some involved questions of service of process and others did not authorize all claims against the registering defendant, but rather only claims brought by a resident of the forum. The railroad also argued that most of the statutes were distinguishable and that nineteenth century cases did not support that jurisdiction was appropriate under these statutes when the plaintiff was a nonresident and the cause of action arose outside the forum. Mallory responded that all the statutes were relevant, while admitting that there were very few cases that employed these statutes in “foreign cubed” cases, where neither the defendant nor the plaintiff was a resident of the forum and the events giving rise to the claim occurred outside the forum. The statutes were more commonly applied in “foreign squared” cases, where at least the plaintiff was a resident of the forum. But in response to Justice Alito, Mallory maintained that the existence of the statutes was enough—he did not have to show a tradition of those statutes being applied by the courts to establish original public meaning.

Justice Thomas asked a question that he was able to avoid (by discounting the many proffered analogies to gun restrictions in the Founding and Reconstruction eras) in his opinion this summer in New York State Rifle & Pistol Association v. Bruen—how many state statutes are necessary to establish the original meaning? Mallory responded that was a difficult issue, but thought the compilation of statutes in the brief satisfied the requirement. But that would not be the case, of course, if the Court views the statutes as distinguishable.

Registration as Consent?

Justice Thomas also embarked on questioning that became a consistent theme throughout the argument—is the Pennsylvania statute really evidence of consent? Justice Kagan queried whether the registration-to-do-business form could be a form of actual consent when it does not specify the consequences of the registration: “All the piece of paper does is comply with a state law requirement that everyone who does business in the state has to make their identities known . . . [s]o where is the consent to jurisdiction in that?” Wasn’t any such “consent” therefore fictional, and how would that differ from a statute providing that intrastate business activities would subject a nonresident corporate defendant to general jurisdiction? The railroad also hammered this point, arguing that ex ante consent was only permissible in a private contract (apparently like the adhesion contracts corporations force on consumers with arbitration agreements or forum selection clauses), but not in an agreement with the state.

Mallory responded that pieces of paper matter—incorporation is a matter of filing papers that grants the state general personal jurisdiction, and the same should occur when a nonresident corporation registers to do business and the state by statute specifies the jurisdictional consequences of that registration. This was supported, Mallory continued, by the longstanding history and tradition of statutes and judicial decisions recognizing registration to do business as a constitutionally permissible method to obtain consent to personal jurisdiction.

Chief Justice Roberts replied that “history and tradition move on” and indicated that the minimum contacts analysis in International Shoe Co. v. Washington dispensed with these older cases. But Mallory maintained that International Shoe recognized jurisdiction based on “consent to be sued or authorization to an agent to accept service of process.” He continued that consent was a traditional basis of jurisdiction—like the tag jurisdiction upheld in Burnham v. Superior Court—and could exist side-by-side with the minimum contacts standard (although no one discussed how Shaffer v. Heitner might impact that possibility). Justice Gorsuch also rallied to Mallory’s defense, arguing that, if tag jurisdiction can exist alongside International Shoe, so can consent jurisdiction through registration.

Justices Kagan and Kavanaugh were concerned that this would effectively undercut the “at home” standard for general jurisdiction from Daimler AG v. Bauman and Goodyear Dunlop Tires Operations, S.A. v. Brown. Justice Kavanaugh noted that, if the Court found in favor of Mallory, “every state could have a statute like this,” meaning “that every business would be at home throughout the country.” This would, as the Second Circuit colorfully maintained, rob Daimler of meaning “by a back-door thief.”

Corporations v. Natural Persons

Justice Gorsuch answered this concern by returning to tag jurisdiction, reiterating a question from his concurrence in Ford Motor Co. v. Montana Eighth Judicial District Court: why should corporations have special protections from jurisdiction based on registration when individuals in a forum state can be tagged? Mallory agreed that there was no basis for such a distinction: “Obviously, the language of the Fourteenth Amendment speaks to persons, and it doesn’t create . . . a person that’s entitled to better constitutional rights because they were birthed by filing a piece of paper in Virginia as opposed to . . . being birthed by a mother at a hospital.”

The railroad, of course, had a different view. Tag jurisdiction against natural persons, the railroad contended, was supported by a longstanding historical tradition, while there was only a smattering of statutes and almost no cases indicating that registration could support general jurisdiction. The railroad maintained that the old service of process statutes referenced in Mallory’s brief were simply not enough. And tag jurisdiction was also different since a person can only be in one state at a time, while a corporation might be coerced to consent to jurisdiction simultaneously in each and every state.

The Unconstitutional Conditions Doctrine and State Sovereign Interests

In addition to the argument that its registration was not a form of consent, the railroad pushed the argument that any consent would be an unconstitutional condition. The railroad claimed a right to be free from general jurisdiction when it was not “at home” in the forum, urging that coercing its agreement to jurisdiction to secure its right to conduct business in Pennsylvania would be unconstitutionally coercive. Although its brief was more nuanced, acknowledging the possibility without agreeing that consent through a registration statute might be permissible for claims by state residents, the railroad insisted on a bright line during oral argument that any consent outside the contours of specific jurisdiction was an unconstitutional condition.

Mallory countered that the unconstitutional conditions doctrine did not apply. He said that the history and tradition of these registration statutes removed them from scrutiny as an unconstitutional condition. Also, the greater power of a state to totally shut down a market includes the lesser power to obtain a consent to jurisdiction.

Mallory had immediate pushback from Justices Kavanaugh and Alito on whether a state today could shut down a market under the dormant Commerce Clause. Mallory urged that under the original meaning a state could do so, while recognizing the tension with the Court’s dormant Commerce Clause cases. Here Mallory may have missed an opportunity to distinguish between intrastate and interstate business activities, although it was alluded to by Justice Jackson—while precedent establishes a state cannot bar a nonresident corporate defendant’s interstate activities, it might (at least arguably) have the ability to exclude a corporation for failing to register when it performs a sufficient quantum of intrastate business activities, as we discuss in a prior writing.

And speaking of our writings, Justice Sotomayor asked Mallory about the amicus brief that we co-authored with Robin Effron, Jack Preis, Jeff Rensberger, and Aaron Simowitz. She referred to our position that consent through registration to do business could be constitutional, but only if the state has a sovereign interest in the dispute. And, if our argument was accepted, what would be the sovereign interest in this case? Mallory urged that historically a sovereign interest was not required (which we dispute in our brief). He then continued that even if a sovereign interest was necessary, Pennsylvania had a state interest in opening its courthouse doors to everyone. He pointed to state constitutional right-to-remedy and open-courts provisions, urging they established a foundational understanding that a resident should have a forum, with states also having a sovereign interest in treating residents and nonresidents the same. But the Court’s past cases, as we point out in our brief, have distinguished between a state’s sovereign interests with respect to residents and nonresidents.

In a lengthy follow-up question, Justice Kagan seemed skeptical that Pennsylvania had a sovereign interest. The railroad also pointed out that Pennsylvania had not asserted a sovereign interest in the case by trying to defend the constitutionality of the statute. Yet perhaps there is an interest in the case due to the amount of business that the railroad does in Pennsylvania. Indeed, it appears the reason the suit was filed in Pennsylvania is that the union lawyer soliciting these carcinogenic exposure cases was based in Pennsylvania and then referred Mallory to Pennsylvania counsel, which is not surprising when more of the railroad’s employees work in Pennsylvania than in any other state.

Daimler Revisited?

Justice Sotomayor expressed her continued disagreement with Daimler, using this case as an illustration. Even though it was not in the record, an amicus brief detailed that the railroad operates more track and has more employees in Pennsylvania than it does in any other state in the union. While recognizing the possibility of coercion in registration in cases of smaller companies, there was no injustice here when the railroad was conducting that much business in the state. The only reason it was not “at home” in Pennsylvania was that it had its corporate offices in Virginia and identified Virginia as its corporate headquarters and principal place of business.

It’s not clear, though, that any other Justice desires to revisit Daimler. Justice Jackson appears to favor Mallory on a waiver theory—the railroad waived any ability to assert its due process rights by registering to do business. Justice Gorsuch (perhaps joined by Justice Thomas) seems willing to uphold jurisdiction based on the original meaning of consent-by-registration statutes and a comparison to tag jurisdiction for natural persons, with the unequal treatment “due process Lochnerism for corporations.”

But the remainder of the Court appears disinclined to hold for Mallory. Some Justices discussed our intermediate position of requiring a state sovereign interest, and the United States also recognized that there could be situations where a registration statute might support jurisdictional consent when specific jurisdiction is not present. But historically, the United States continued, these registration statutes were limited to claims either by a forum resident or that had some other relationship to the dispute, echoing the position we took in our amicus brief.

Oral argument showed that the Justices had very different views about the basis for constitutional limits on personal jurisdiction. Justices suggested approaches for resolving the case that ranged from due process to principles flowing from the dormant Commerce Clause to unconstitutional conditions—a set of topics where each one, on its own, has given rise to a thorny doctrinal tangle. Clearing a path to five votes won’t be easy.

JOTWELL: Effron on Simon on bankruptcy as aggregate litigation

The new Courts Law essay comes from Robin Effron (Brooklyn) reviewing Lindsey D. Simon, Bankrtupcy Grifters, 131 Yale L.J. 1154 (2022), which considers bankruptcy as a tool of aggregate litigation and the problem of solvent debtors running to bankruptcy to avoid mass-tort litigation.

Civ Pro Halloween

Civ Pro is a spring class around here, so no in-class costumes. Still, I got a visit from a student in my office. She is 4'11" tall; she wore a white t-shirt with the word "statement" on it.

JOTWELL: Bartholomew on Ormerod on qui tam

The new Courts Law essay comes from Christine Bartholomew (Buffalo) reviewing Peter Ormerod, Privacy Qui Tam, ___ Notre Dame L. Rev. (forthcoming 2023), proposing qui tam actions to enforce privacy rights.

JOTWELL: Mullenix on Dodge, Gardner, & Whytock on Forum Non Conveniens

The new Courts Law essay comes from Linda Mullenix (Texas), reviewing William S. Dodge, Maggie Gardner, & Christopher A. Whytock, The Many State Doctrines of Forum Non Conveniens, 72 Duke L.J. (forthcoming 2023).

Trump v. CNN

Donald Trump has sued CNN for reporting and op-eds comparing him to Hitler and using the term "Big Lie;" he seeks $ 475 million in damages.

This lawsuit demonstrates something I have argued for awhile--the call to overrule New York Times as shorthand for rejecting or limiting actual malice is a red herring, distracting from a broader attack on political speech, criticism of government and other influential persons, and the First Amendment's broader speech-protective superstructure. A host of First Amendment principles destroy this case, regardless of actual malice. Everything the suit complains about is political speech and criticism, opinion, and rhetorical hyperbole--all at the core of First Amendment protections; it points to no provable and verifiable statements of fact that can form a basis for defamation liability. The suit would overrule the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." It is difficult to imagine a clearer example of caustic and sharp rhetorical hyperbole than comparing a political leader to Hitler.

The suit also suggests that because CNN purports to be a news organization, it enjoys less First Amendment protection--including the loss of protections of actual malice--than other speakers. It argues that actual-malice protection should not apply

where the media defendant is not publishing statements to foster debate, critical thinking, or the 'unfettered interchange of ideas' but rather seeks to participate in the political arena by offering propaganda.

This is insane on several levels. It suggests there is something called "propaganda" entitled to less protection; it allows government to define and draw the line between that and fostering debate; and it insists there is a distinct category called "news" (never defined) and limits certain media speakers to that category. The irony of this media/other speaker distinction is that it turns NYT on its head. The Court has long debated but never resolved whether NYT applies to nonmedia defendants. Trump's suit goes the other way--media defendants enjoy less protection than other speakers.

This is an absurd suit that should go down in flames at the 12(b)(6) stage and should result in sanctions for the ethically challenged lawyers who filed this. In addition, Florida's anti-SLAPP statute could rear its head. The statutory dispositive motion does not apply in federal court. But Florida's statute contains a unique fee-shifting provision--fees are available for any action that is "without merit," not limited to actions  rejected under the special anti-SLAPP motion (as in most anti-SLAPP laws). One judge in the Southern District of Florida has applied the statutory provision (which should apply in federal court) to award fees where the action was dismissed on an ordinary 12(b)(6). Trump thus could be on the hook for attorney's fees for this abuse of process.

Maybe Dobbs is different

During the period between the Dobbs leak and the opinion, I wrestled with the arguments that Dobbs is unique because it overrules precedent to eliminate a recognized individual right, as opposed to reinstating or establishing a new right. I was not sold on the argument because the Court has "eliminated" rights--overruling Lochner and overruling some crim pro stuff. In any event, I was not convinced that the difference matters for the Court's "legitimacy."

But here is a thought that might change my mind. There is an open question whether conduct that was constitutionally protected when performed at T₁ can be punished or sanctioned at T₃ after precedent changes and that conduct loses its constitutional protection at T₂. This can happen in two ways. 1) An existing law,de-zombified, is enforced against a rights-holder; the rights-holder's pre-new-precedent conduct violated the law, so she becomes subject to successful enforcement of the law following the change ; or 2) Following the change, government enacts a new law, imposing civil (not criminal) sanctions and made expressly retroactive, and the law is enforced against a rights-holder's pre-new-precedent conduct. Jonathan Mitchell (the source of S.B. 8 and its imitators) argues that either is permissible. Precedent functions as a judicially imposed non-enforcement policy; when that non-enforcement policy changes because judicial precedent changes, the rights-holder can be liable for conduct that violated the statute.

If Mitchell is right,decisions eliminating a right (Dobbs) are different from one that does not eliminate a right (Brown). The former imposes new consequences on rights-holder for old conduct; the latter does not. Or the difference triggers some forward-looking due process concerns.

I would not frame this as legitimacy. But it implicates an additional layer of constitutional concern going forward.

JOTWELL: Vladeck on Codrington on Purcell

The new Courts Law essay comes from Steve Vladeck (Texas), reviewing Wilfred U. Codrington III, Purcell in Pandemic, 96 N.Y.U. L. Rev. 941 (2021), exploring the use of Purcell to avoid challenges to COVID-related voting restrictions.

Still getting procedure wrong

Following last night's Eleventh Circuit benchslap, Judge Cannon sua sponte modified her order by excluding seized materials from those to be reviewed by the special master and striking two paragraphs ordering the SM to prioritize and make available to plaintiff's counsel the documents marked classified.

Two problems, I think. The amended order moots the 11th Circuit stay and thus Trump's appeal of the stay. The court of appeals only stayed the order as to the documents marked classified; since the order no longer affects those documents, there is nothing to stay. But that highlights the second problem--how does Judge Cannon have jurisdiction to modify the order? The government appealed the entire order, although it sought a stay only of the part related to classified documents (so it could continue the criminal investigation pending appeal). But if the entire order is in the 11th Circuit, how does Judge Cannon have jurisdiction to modify it? The unstayed portions must be complied with (i.e., the SM proceedings go forward). But the district court should not have the power to change an order that has left the district court and is on appeal--otherwise a district court could hamper appellate jurisdiction by repeatedly changing the orders in the case.

What am I missing?

The wrong abstention

The district court held a hearing in the lawsuit by Tampa DA Andrew Warren against Ron DeSantis for suspending him from office. The court from the bench granted the state's motion to dismiss the state claims (under Pennhurst), denied the motion to dismiss the First Amendment claims (more below), and denied Warren's motion for a preliminary injunction reinstating him.

I thought the court should abstain under Pullman. There is an open question of whether the suspension was proper under the state Constitution; if it was not, Warren is entitled to reinstatement without the federal court resolving the (uncertain) First Amendment issue. This case matches Pullman--state action of uncertain state-law provenance arguably violates the federal Constitution and the federal courts holds on the federal issue to allow state courts to resolve the potentially dispositive state issue. Pullman is disfavored, especially in First Amendment cases, but the case seems the rare one that fits. But the state did not argue Pullman, citing it only for a general proposition about federalism.

Instead, the state argued Younger--that the federal court should abstain in deference to the Senate proceeding that reviews the governor's decision and either formally removes or reinstates the official. The states describes the proceeding as ongoing and judicial in nature, serving an important state purpose worthy of comity deference, and providing Warren an adequate opportunity to raise his First Amendment defenses.

The state messed up the Younger analysis by not citing Sprint or placing the Senate proceeding in a Sprint categroy. Presumably it is # 2 (certain civil actions akin to criminal cases). But the state must explain why it fits--whether the state is a party, whether it has the trappings of a criminal proceeding by following an investigation and charge, and whether it is designed to punish for past misconduct. It is iffy on the second, but otherwise fits that category. If an administrative proceeding (e.g., attorney discipline) is sufficiently judicial, this Senate process should be.

But this raises a different issue within Younger. One Younger premise is that abstention forces the rights-holder into defensive state litigation, but with possible (albeit not guaranteed) federal review of the federal issues in SCOTUS under § 1257. It appears that Senate review of removal constitutes the last word, not subject to state judicial review and therefore not subject to SCOTUS review (the Senate is not the "highest court" of a state). Unlike an administrative proceeding reviewable in state court and thus to SCOTUS, the Senate proceeding, however "judicial" in nature and however able Warren is to raise the First Amendment, does not provide a path into the state judiciary and thus to SCOTUS. And perhaps that explains the denial of abstention.

Morissette, J., dissenting

A 5-4 Court on Wednesday denied Yeshiva University's request for a stay of a state-court preliminary injunction requiring it to recognize an LGBTQ+ undergrad student group. The majority (the Chief, Sotomayor, Kagan, Kavanaugh, Jackson) pointed out that Yeshiva had not sought a stay or expedited review in the state courts. Unlike the typical shadow docket case, the Court cannot hear this case on the merits for several layers of review. Justice Alito dissented for Thomas, Gorsuch, and Barrett. Typical shadow-docket stuff--it is obvious how we will rule on the merits of this religious-liberty claim so do not waste time with procedural niceties such as multiple layers of review.

Here is the interesting piece. Alito cites National Socialist Party v. Skokie for the proposition that a state-court denial of a stay is a final order--ignoring that the Illinois Supreme Court had denied that stay and expedited review, whereas here the trial court denied the stay and Yeshiva never asked the state appellate court or the state high court for a stay or expedited appeal. He then says "It is ironic that the theory that supported a stay in that case is eschewed here."

In what way is this ironic? Is it because Jews are involved in both cases? Does it matter that Jews were not party to Skokie? Was that case inherently Jewish because it involved Nazis? Is it less ironic if the non-Jews of Skokie, hopefully, also were not thrilled to have Nazis marching there? Does it matter that the Jews were targeted in Skokie as an ethnic group rather than religious (since Nazism does not distinguish religious from non-religious Jews). And what if, like many Jews, one believes the Nazis should have been allowed to march and Yeshiva should be required to recognize the student group--does it cease to be ironic?

JOTWELL: Carroll on Greene & Renberg on judges without J.D.s

The new Courts Law essay comes from Maureen Carroll (Michigan) reviewing Sara Sternberg Greene & Kristen M. Renberg, Judging Without a J.D., 122 Colum. L. Rev. 1287 (2022), examining the phenomenon of low-level state judges who do not have law degrees.

Does lawyering matter?

Perdue v. Kenny A. limited when judges could increase an award of attorney's fees beyond the lodestar for "superior performance and results." Chief Justice Roberts doubted the claim during argument; he posited that there was a knowable right answer in the case and that good attorney performance cannot change what that answer is. That "answer" likely is whatever the judge believes to be the right answer.

But that raises the question of whether lawyering matters at all. If the judge will do what she is inclined to do, does the quality of the lawyering matter? Case in point--Judge Cannon granted Donald Trump's motion (while acknowledging how "convoluted" this collateral-ish proceeding is) to appoint a special master and enjoined DOJ from continuing to review the seized documents for prosecution (although not for national-security) purposes. No one can objectively compare the papers by each side in this case and conclude that Trump's lawyers did a better job lawyering the case--making and supporting legal arguments with precedent, adhering to rules and procedures, not sounding like a Twitter fight, not throwing around random concepts ("fruit of the poisonous tree"), and focusing on the actual relief at hand. None of it mattered--the judge (for whatever reason) was inclined to rule a particular way and did so. Of course, she did so without any legal analysis--no explanation of how executive privilege applies against the executive branch; how equitable jurisdiction is not barred by laches; how 41(g) is the correct vehicle when executive-privilege documents still do not belong to Trump and thus are not returnable personal property; and why former presidents suffer greater "stigma" constituting irreparable injury than any other target of a search warrant. She also called her order a "temporary injunction," which is not a thing under FRCP 65--there are (non-appealable) temporary restraining orders and (appealable) preliminary injunctions; so getting the law right does not seem to be her strong suit. Of course, Cannon did a better job than Trump's lawyers--making something coherent (if wrong) of the nonsense they submitted.

The injunction is immediately appealable, without needing mandamus. Some knowledgeable folks are wondering whether DOJ will bother appealing or whether it will ride out the special-master process and deal with the few-week delay or appealing later problematic rulings from the special master.

Judicial departmentalism in action

Idaho wants to prevent trans people from changing their gender markers on state documents. Here is how it has gone:

• Pre-2018: State regulations prevent trans people from changing markers.

• 2018: Federal court declares reg violates equal protection

• 2020: State enacts legislation codifying regulation

• 2021: Federal court declares legislation violates equal protection

• 2022: Court orders state to pay $300,000 in attorney's fees.

Folks are giving Idaho a hard time, but this is how it should work. The state pursued its constitutional vision, even contrary to judicial precedent. The court's competing view prevailed in litigation and the state adheres to the adverse judgment. And the court awarded the state to pay attorney's fees to the prevailing plaintiffs. That the court's view will prevail in litigation and that the court can award fees can/should place a drag on states pursuing their departmentalist preferences--states know they will lose and lose money.

It is unwieldy. But it is how the system should work.

Bad lawsuits from the left

Florida Governor Ron DeSantis suspended Hillsborough County (Fla--includes Tampa) state's attorney Andrew Warren from office, pursuant to his constitutional power to suspend any state officer not subject to impeachment. The basis for the removal is Warren's intention not to prosecute for receiving or providing abortions and gender-affirming healthcare, which DeSantis described as a refusal to enforce state law.  Warren filed suit in federal court; he alleges the suspension violates the First Amendment (because Warren has merely spoken about exercising his discretion not to prosecute, but has not been presented with or done anything with any live cases) and the Florida Constitution (because DeSantis did not establish proper grounds for suspension).

This is a bad lawsuit. Like many lawsuits from the right, it is partly for show, to look strong in standing up to the other side. Warren gave a press conference talking about how DeSantis abused his power and acted undemocratically in removing a twice-elected official who received more votes in Hillsborough County than DeSantis had. That rhetoric does not differ from Republican cries during Trump's impeachments. It seems to me there are two problems with the suit, at least in federal court.

The First Amendment claim fails under Garcetti and the patronage cases. Accepting that DeSantis retaliated for Warren's expression and nothing he did in office, Warren is a policymaking official and he spoke as part of his formal job duties; the First Amendment does not protect such speech from employment consequences. DeSantis is not Warren's "boss" and that Warren owes his job to the county voters and not to DeSantis or anyone under DeSantis' control. But DeSantis enjoys a (limited) supervisory role over Warren. Job-related speech--a promise as to how he intends to perform his official functions--is not protected as a basis for suspension if it constitutes misfeasance, neglect of duty, or incompetence. If a policy-level employee can be fired for cause for job-related speech without First Amendment recourse, a person can be suspended for job-related speech that provides a legal basis for removal without First Amendment recourse.

Warren's real argument is that his speech cannot constitute misfeasance, neglect, or incompetence. That is a question of state law that a federal court will not (and arguably should not) touch. This is a paradigmatic Pullman abstention case--if there were a good First Amendment claim, it can be mooted by an open-and-unresolved state law issue of whether Warren's conduct met the state-constitutional standard* for removal, which a state court should resolve in the first instance. At worst, I would expect the district court to certify the state issue to the Florida Supreme Court. Pullman abstention and certification are disfavored in First Amendment cases because of the chilling effect in the litigation delay, but Warren's First Amendment claim is  weak and the state issues are uniquely central and dispositive. Of course, Warren does not want to be in state court, especially not the Florida Supreme Court. But that is why we have these doctrines.

[*] Federal courts do not abstain from federal constitutional issues in deference to a parallel state constitutional issue. They do abstain in deference to a unique state constitutional issue.

I do not know much about Warren, but he appears to have political aspirations and is willing to take on the current state power. Which is great. But political fights are no more proper in federal court when undertaken by a politician I agree with for a cause I support.

Update: A reader offers another reason the Court cannot hear this case--a plaintiff cannot bring a § 1983 or Ex parte Young claim for a violation of state law and a federal court cannot order state officials to follow state law.

Abortion and state-created danger

Imagine a pregnant person in a state (Missouri and Ohio seem the current leading examples) in which doctors and hospitals have interpreted  state law to require an emergency to escalate before an abortion can be performed under a life or extreme-disability exception. The doctor believes that an abortion is necessary but the situation is not emergent and as she understands the law, abortion is permitted to handle imminent death or disability, not likely; the doctor waits until the woman suffers further complications, then performs the procedure. Could the woman make a claim against state officials for any harm in waiting for her condition to worsen?

State-created danger establishes substantive due process liability for third-party harms where government takes affirmative action that subjects an individual to new or greater danger at the hands of third persons or circumstances, in a way that shocks the conscience (either because done with intent to injury or deliberately indifferent to an injured person's rights). Here we have government action in the enactment and potential enforcement of state laws against doctors who perform abortions. That state action increases the danger to patients at the hands of circumstances (their medical condition) by affecting treatment--doctors do not act on their medical judgment out of fear of prosecution, causing  the patient's condition to worsen. Causing doctors to allow patients' condition to worsen before treatment shocks the conscience. Threatening enforcement shows deliberate indifference knowing that enforcement affects doctors' actions in a way that endangers patients. Going one step further, could a doctor (using third-party standing) sue for injunctive relief, showing that these laws affect their medical judgment, causing harm to many women, and therefore the state law is constitutionally invalid?

My (imperfect) analogy is lawsuits challenging municipal ordinances that impose consequences on landlords (fines, loss of license) whose tenants have too many disturbing-the-peace 911 calls (including calls from domestic-violence victims). Plaintiffs have argued that the laws make them more vulnerable to abuse by domestic partners because less willing to call 911 out of fear that their landlord will evict them to avoid the consequences for multiple calls. The suits that have been brought have settled, so no court has passed on the theory.

I admit this would be a tough sell, especially in a pre-enforcement action. It might be tough to limit to abortion/health care. Would it open the door to a claim against the state for raising the speed limit to 70, on the theory of "you knew people would drive faster and less safely, making me more vulnerable to a reckless driver." State officials could argue that they are not deliberately indifferent to the pregnant women but trying to protect fetal life.

Still, as abortion-rights activists look for legal theories to avoid the worst effects of Dobbs, it might be a theory worth pursuing.

Facial invalidity and universality

The concept of facial invalidity confounds the universal-remedy debate. The argument goes that if a court declares a law facially invalid--invalid as to all persons, beyond the plaintiff--then it must be able to enjoin enforcement as to all persons, beyond the plaintiff. The response rests on the judgment/opinion distinction. The judgment remains limited to the parties, because that is all a court can do. The opinion, explaining why the law cannot be constitutionally enforced against anyone else, has precedential effect--telling government and the courts what must (if binding precedent) happen in the next case if the government attempts to enforce. The executive may, in its departmentalist discretion, take that chance, although precedent tells him the state will lose in court. But a court cannot "invalidate" a law, therefore it certainly cannot "facially invalidate" a law.

The Second Circuit displays this confusion in Picard v. Magliano, a challenge to a state law prohibiting certain protests within 200 feet of a courthouse. The district court declared the law facially invalid and issued a (what I label) a universal injunction, prohibiting all enforcement of the law. The Second Circuit declared the law invalid as to the plaintiff (who wanted to hand out flyers about jury nullification), which the state conceded, and affirmed the injunction prohibiting enforcement of the law against him. But it declared that the law was not facially invalid because it was capable of constitutional application, thereby vacating the injunction prohibiting enforcement beyond the plaintiff.

That last move makes no sense because the initial injunction makes no sense. The district court never should have enjoined enforcement beyond the plaintiff and the Second Circuit should have narrowed the injunction for that reason. The facial validity of the law is about the scope of precedent and future enforcement.

Undermining judicial review

In my post on California's SB 1327, I noted Ilya Somin's post . He quoted the ACLU's May letter objecting to the proposal, in which it said the bill "creates an end run around the essential function of the courts to ensure that constitutional rights are protected."

This criticism--and it is a common one--misunderstands the procedural point. These laws do not eliminate judicial review; they shift its posture. Pre-enforcement offensive review is unavailable, pushing rights-holders into a defensive posture. A rights-holder must violate the law, get sued, and raise her constitutional right as a defense to liability. This action will begin and remain in state court, with (discretionary) SCOTUS review at the end of the process. This is recognizable as judicial review--a court passing on the constitutional validity of a law and determining whether it can be enforced--and allows courts "to ensure that constitutional rights are protected." It is wrong to say otherwise.

The problem with these laws--if there is one--is not that they bar judicial review, but that they require a less-preferable or less-ideal form of judicial review. Those who reject parity between state and federal courts do not like that litigation will begin in state court and that SCOTUS's discretionary jurisdiction may mean no federal forum. Rights-holders must "act at their peril" by violating the law and getting sued to obtain review, something they may choose not to do out of fear of liability. That creates a substantive problem--the loss of constitutionally protected activity. And it creates a procedural problem--the absence of statutory violations means "any person" will not sue, which mean the rights-holder has no opportunity for judicial review. The rights-holder also may be unable to obtain necessary binding precedent when litigating defensively. If the trial court dismisses on constitutional grounds, "any person" may choose not to appeal, taking his loss and going home until the next lawsuit, while leaving the rights-holder free from liability now but fearing the next lawsuit. Doug Laycock argued that offensive litigation provides three unique benefits--preliminary relief, prospective relief (beyond precedent), and class-wide relief--not available in defending a single suit.

These are valid criticisms of SB8/SB1327-type laws. But critics and advocates do not capture them through the simplistic "this prevents judicial review." Critics must explain why the model of judicial review the law allows is inferior and insufficient to offensive pre-enforcement litigation. Further, they must explain not why offensive pre-enforcement litigation is better, but why it is constitutionally necessary. And they must explain not why defensive litigation is worse, but why it is constitutionally insufficient. Screaming about "end runs" around judicial review does not make that case.

California goes full SB8 on firearms, sort of

SB 1327, signed by Gov. Newsom on Friday, prohibits distribution and sale of assault weapons, .50 BMG rifles, or unserialized firearms, as well as selling to people under 21. The bill prohibits public enforcement of these provisions and creates a private right of action that copies the elements of SB8--$10,000 statutory damages per firearm, injunctive relief, and attorneys fees; no fees for defendants; limited affirmative defenses.

California got the procedure right (much to my surprise), in making private enforcement exclusive and prohibiting public enforcement. The conversation around SB8 and copycats has focused on private enforcement as this powerful weapon ("bounty hunters" makes a great headline and political talking point, as someone pointed out on a listserv), as if private enforcement alone creates the bind for rights-holder that SB8 did. Private enforcement must be exclusive, otherwise rights-holders can pursue offensive pre-enforcement litigation against the responsible executive.

I am not sure how much effect this will have, beyond symbolism ("the left can play the same games as the right"). The law may not be constitutionally invalid--do the recent cases mean that states cannot prohibit any firearms, regardless of nature? The law certainly is not blatantly unconstitutional (if there is such a concept); no binding SCOTUS precedent establishes that the sale and manufacture of assault weapons or unserialized handguns is protected by the Second Amendment. The law does not target possession of assault weapons or subject owners to private suits for possessing absent an intent to give the weapon to someone else. The prohibited weapons are less pervasive and less at the core of "Second Amendment activity" than post-six-week abortions; the latter represented 90 % of Texas abortions, whereeas assault weapons are already prohibited by California law. Suits under this law are less likely to substantially disrupt ongoing seller or buyer activity.

To the extent sellers believe the First Amendment protects unregulated purchases (and thus sales) of assault weapons, this law may not hamstring them in challenging it. A seller could challenge the criminal prohibition in a pre-enforcement action against the government, obtain (it hopes) favorable precedent, then use that precedent to defend civil suits under the new law (an invalid ban would be as violative of the Second Amendment regardless of enforcement system). Ultimately, this looks less like SB8 and more like California's consumer-protection scheme pre-2004, in which laws prohibiting misleading statements could be enforced by the government or by "any person" civil litigation, leaving possible pre-enforcement offensive litigation in place.

I think the real "lefty" answer to SB8 is the one Rocky and I hypothesized--a prohibition on racist speech, exclusively privately enforced. That would reach a wide swath of likely protected activity in the way SB8 did, without allowing for pre-enforcement judicial review.

Immediate Update: Ilya Somin has thoughts. He argues the scope of potential defendants is quite broad and thus the law could have more effect than I suggest.  And he continues to urge that offensive litigation should be available against the sheriff who would enforce any judgment (we argued this fails for the same reason as the clerks-and-judges theory). Although to the extent one of the conservative justices would abandon procedural principle when the threatened substantive right is one they like, Ilya provides them the path.*

[*] To be clear, I am not accusing Ilya of inconsistency--he made the same argument about SB8 as about SB 1327. I am suggesting one of the WWH majority could use this to put a fig leaf over inconsistency

JOTWELL: Wasserman on Clopton on catch-and-kill jurisdiction

I have the new Courts Law essay, reviewing Zachary D. Clopton, Catch and Kill Jurisidiction (Mich. L. Rev., forthcoming), which describes a category of cases in which federal courts pull cases out of state court through expansive federal jurisdiction, then dismiss on uniquely federal non-merits bases. For further reading, see the response forthcoming in Mich. L. Rev. Online.

Disinformation & Defamation: A Loss for Veritas, A Strike for Truth?

A variety of defamation lawsuits connected to the discredited allegations of massive election fraud in the 2020 presidential election (sometimes called the "Big Lie") are proceeding to discovery. These suits not only seek to vindicate the reputations of the plaintiffs accused of participating in election fraud; they also seek to strike back against the campaign of disinformation underpinning the Big Lie.  For example, Dominion Voting Systems’ suits against Rudy Giuliani, Sidney Powell and My Pillow CEO Mike Lindell; former Overtock CEO Patrick Byrne; Newsmax; and Fox Corporation have all gotten the green light to proceed. Smartmatic, another voting systems company, is also proceeding with a number of separate defamation suits. 

Now another defamation case involving accusations of election fraud joins them, this time involving an Erie, Pennsylvania postmaster. A Pennsylvania trial court has held in Weisenbach v. Project Veritas that discovery can proceed against Project Veritas, its founder James O'Keefe, III, and postal employee Richard Hopkins. The postal employee, Hopkins, accused Erie Postmaster Robert Weisenbach of backdating mail-in ballots during the 2020 presidential election. Hopkins based his accusations, which were published by Project Veritas and O'Keefe, on a conversation he supposedly overheard between Weisenbach and another postal supervisor. After the initial publication of these accusations, Hopkins was interviewed by the Postal Service's Office of Inspector General. Hopkins recanted his accusations during the interview, but later told Project Veritas he was coerced into doing so. Despite the questionable reliability of Hopkins' accusations, Project Veritas kept publishing them, and they were picked up and repeated by a number of Trump partisans and Trump himself. Meanwhile, the accused Postmaster Weisenbach, who was actually a registered Republican and Trump voter, had to flee his home. Hopkins lost his job with the postal service, but he was able to solicit, through online crowdfunding, hundreds of thousands of dollars from Project Veritas readers. A report of the Office of Inspector General found no evidence supporting Hopkins' allegations, but Project Veritas did not retract them. Postmaster Weisenbach sued Hopkins, O'Keefe, and Project Veritas for defamation and concerted tortious activity.

Defendants filed "Preliminary Objections" in the nature of a demurrer to the Postmaster Weisenbach's complaint. The judge overruled the objections, meaning the case against defendants proceeds to discovery. 

Defendant Hopkins' first objection was jurisdictional. He contended that the Federal Tort Claims Act gives exclusive jurisdiction to federal courts for claims made against federal employees acting in the scope of their employment. In other words, Hopkins argued that he made his allegations to Veritas and O'Keefe about the Postmaster Weisenbach while acting within the scope of his federal employment. The trial judge, however, found that Plaintiff's Complaint sufficiently pleaded that Hopkins made his statements to Project Veritas outside the scope of his employment and that he "was driven by financial gain and a desire to cast doubt upon the legitimacy of the election and the integrity of his employer." The court found the complaint sufficiently alleged that Hopkins was not acting in the scope of his employment because he was not making the allegations to achieve his employers' "ultimate objective of delivering the mail, but more in the nature of a personal errand." 

Defendants' second objection went to the sufficiency of the Plaintiff's pleading of defamation and concerted tortious activity. The judge found the allegations that Plaintiff had engaged in election fraud "because he was a Trump hater" capable of a defamatory meaning. The judge's phrasing is interesting, because it is not normally defamatory to misattribute someone's political party. The court indicated that Plaintiff alleged he can prove that he is not a "Trump hater," but it is unclear whether what is defamatory in the Plaintiff's allegation is the misattribution of political party or the allegation of illicit motive for backdating mail-in ballots. Regardless, the accusation of committing election fraud was clearly capable of a defamatory meaning! The court also rejected the argument that Project Veritas' allegations were mere hyperbole uttered online in the heat of an election contest, stating that consideration of context might by appropriate at trial but is inappropriate at the pleading stage, when all reasonable inferences must be drawn in the Plaintiff's favor. 

The judges also found the Postmaster's allegations that Hopkins, Veritas, and O'Keefe "conspired" to defame him sufficient to support his substantial assistance or "aiding and abetting" claim. The court wrote: "Count III indicates a laundry list of ways in which Project Veritas and O'Keefe substantially assisted Hopkins, including through encouragement to come forward, the drafting of the affidavit, instructions on how to profit from the crowdfunding account, keeping lawyers on retainer to defend Hopkins, and consulting with Hopkins on a daily basis, all with the common goal of defaming Weisenbach." The judge refers to the this as "concerted 'character assassination,'" rather than journalistic reliance on an inside source. 

Finally, the court held that regardless of whether a Postmaster is a public official, the Plaintiff's complaint adequately pled actual malice as to all defendants. The Complaint alleged that Project Veritas drafted Hopkins' affidavit, encouraged and aided him to solicit donations through online crowdsourcing, flew him to New York to be interviewed, and got him legal counsel.  The Complaint also alleged that Project Veritas initially claimed they had "multiple sources" for their false accusations. Moreover, Project Veritas "doubled down" after Hopkins recanted his story. Even after the Postal Service Inspector General issued a report stating there was no evidence the Postmaster had engaged in backdating, Project Veritas would not retract their accusations. Thus, the judge concluded: "Taken together, these facts, if ultimately proven, could be credited as circumstantial evidence that Project Veritas and O 'Keefe fabricated evidence to bolster their story, or at least harbored serious doubts as to the truth of Hopkins' claims." The judge also stated that a jury might find actual malice if it found, consistently with Plaintiff's averments, that Project Veritas had developed a pre-conceived story line and solicited information to fit based on a desire to "erode confidence in the security of mail-in voting."  The court therefore concluded that the Postmaster's "mosaic of averments" related to Project Veritas' fabrication of evidence, deliberate avoidance of truth, and "ulterior motive for publishing" constituted sufficient facts "such that a jury could eventually conclude by clear and convincing evidence that the alleged defamatory statements were published with actual malice." The judge acknowledged that Project Veritas' arguments that "their reporting 'had to be done quickly'" in the election context would be relevant to the ultimate determination of actual malice but was not relevant at the pleading stage. 

The judge also found sufficient the Complaint's allegations as to Hopkins' actual malice. This issue was straightforward, given the allegations that Hopkins overheard and deliberately misconstrued an ambiguous conversation, recanted his initial allegations, and then benefitted financially from his tale. 

The judge concluded by acknowledging the that the Supreme Court's First Amendment decisions strike a balance between "the need for a vigorous and uninhibited press and the legitimate interest
in redressing wrongful injury." He nonetheless noted: "The constitutional deck is not all stacked to one side."  Despite being "mindful of the chill that lawsuits such as this may have on our press freedoms," the judge allowed Weisenbach's claims to withstand Defendants' demurrers, stating "For now, 'the balance between the needs of the press and the individual's claim to compensation for wrongful injury' weighs in favor of the Plaintiff."

This suit is being brought on Weisenbach's behalf by Protect Democracy, which has a press release about the case here. 

 

 

Snap Relocation

Monet v. Tesla, from ND Cal. This is a products-liability claim alleging defects in Tesla's "autopilot" system. The plaintiffs are Arizona citizens. When the lawsuit was filed on November 16, 2021, Tesla was incorporated in DE and headquartered in Palo Alto, CA. On December 1, 2021, Tesla famously moved its headquarters to Texas. On January 4, 2022, plaintiffs served Texas. Tesla removed on February 2, 2022.

Plaintiffs moved to remand, citing the forum-defendant rule. The court denied remand, relying on § 1441(b)(2)'s "properly joined and served" language. According to the court, the forum-defendant rule bars removal when the defendant is local at the time of service and removal. It further said that the rule that citizenship is determined at the time of filing applies to determining whether there is diversity jurisdiction (which is undoubtedly the case here, regardless of where Tesla has its headquarters), but not to the non-jurisdictional limit of § 1441(b)(2).

This makes no sense.

Diversity jurisdiction locks citizenship at the time of filing; diversity removal should follow that. A case is removable if it could have been filed in federal court in the first instance, which is determined by citizenship at the time of filing. Post-filing citizenship changes cannot create or destroy federal jurisdiction or make a case removable that had been non-removable for lack of jurisdiction. It should follow that post-filing citizenship changes should not make removable a case that was not removable for non-jurisdictional reasons, such as presence of a forum defendant. The time-of-filing rules eliminate the incentive to play citizenship games to create or eliminate jurisdiction, as well as simplifying the jurisdictional inquiry by focusing on one point in time. Tesla obviously did not move to Texas to make this case removable. But post-filing changes should remain irrelevant, both to avoid the temptation and to simplify the analysis.

The court errs in reading "properly joined and served" language of § 1441(b)(2) to override the time-of-filing rule. The forum-defendant rule prohibits removal when there is a forum defendant; whether a defendant is a forum citizen should be measured at the time of filing, along with all other citizenship determinations. The "properly joined and served" language in § 1441(b)(2) checks a particular type of plaintiff gamesmanship--naming but not proceeding against a straw forum defendant and denying removal to the non-forum real litigation targets. But it does so by allowing the parties to ignore the unserved forum defendant in removing, not by allowing the forum defendant to change citizenship in a way forbidden in all other contexts. Stated differently, the "and served" language punishes the plaintiff for gamesmanship or bad litigation strategy in failing to serve the local defendant, by allowing service despite the local;s presence; it does not give one otherwise-disfavored defendant a unique opportunity, available to no other party, to change its citizenship post-filing to allow otherwise-prohibited removal. And, of course, no gamesmanship could have been at work here, since Tesla is the sole defendant, thus not a strawman, and plaintiffs obviously intended to proceed against it.

The court purports to rely on binding 9th Circuit authority for the proposition that removal is proper where the defendant was not a forum citizen at the time of removal. But in Spencer, the sole non-local defendant removed; once in federal court, the plaintiff sought to add a local defendant, then argued that the case must be remanded because it now included a local defendant. The 9th Circuit held, properly, that post-removal changes to the parties that do not destroy complete diversity do not require remand. But the changes in Spencer involved the addition of a new party, not changes to the citizenship of existing parties that are ignored in other contexts.

Finally, note that the court's approach could affect personal jurisdiction. Because Tesla had its PPB in California, it was subject to general jurisdiction there (being sued where it is essentially at home). But would this post-filing citizenship change also eliminate general jurisdiction, because Tesla no longer is essentially at home in California? It should not matter in this case, since there should be specific jurisdiction because the car was likely designed and/or manufactured in California. But on different facts, the court's approach to post-filing citizenship changes can complicate jurisdictional issues.

Florida Anti-Woke lawsuit proceeds, standing is weird

The district court denied (mostly) a motion to dismiss for lack of standing, finding most plaintiffs had pleaded (just barely) enough facts. In particular, the court allowed the claims by a University of Central Florida professor to proceed, rejecting the argument that profs speak as the government when teaching and so lack First Amendment for their classroom speech. (For the moment--the court acknowledged that its conclusion rested on 11th Circuit precedent that may not be long for this world). This decision comes on the heels of the district court denying preliminary injunctions as to most plaintiffs because they lack standing.

This just proves the insanity of treating standing as a jurisdictional doctrine independent of merits. If it is truly a jurisdictional issue, it must be proven by evidence, not based on the pleadings. Moreover, in denying the PI, the court decided that plaintiffs had not shown (through evidence beyond the pleadings) standing. It should not matter that plaintiffs have (barely) pleaded it if the court said they cannot prove it. For example, the court denied dismissal of the rising kindergartner's claim, even though it previously said the kindergartner had not shown an injury because the kindergarten curriculum did not include  any statutorily proscribed material.

Some jurisdictionality in Biden v. Texas

I do not do Ad Law or Immigration, so I do not much to say on the merits of Biden v. Texas. But there was some jurisdictionality thrown in, which is worth discussing.

The district court had enjoined enforcement of the Biden rescission, in violation of § 1252(f)(1), which deprives lower courts (but not SCOTUS) of"jurisdiction or authority to enjoin or restraint the operation" of certain provisions in non-individual cases. The question is whether the district court nevertheless had jurisdiction over the action as a whole, even if it could not issue the remedy it did. The majority said it did, because § 1252(f)(1) limited the court's remedial power but not its subject matter jurisdiction to adjudicate the case. Although § 1252(f)(1) uses the word jurisdiction, jurisdiction to issue a remedy is different from subject-matter jurisdiction to adjudicate. Justice Barrett dissented for Thomas, Alito, and Gorsuch.* She rejected the sharp distinction between SMJ and remedial authority, because SMJ often connects to the remedy, citing examples of the amount-in-controversy in § 1332 and redressability in standing.

[*] Sort of. The three joined all but the first sentence reading "I agree with the Court's analysis of the merits--but not with its decision to reach them." Meanwhile, Barrett did not join Alito's dissent to the merits.

Obviously, I agree with the majority. Remedies, like the merits, should be independent of adjudicative jurisdiction. The problem is Congress using the word jurisdiction carelessly to refer to available remedies in a case the court can hear. I am glad the Court read through it. As to Barrett's examples, the amount-in-controversy is not about available remedies but about the size of the case. Meanwhile, the standing example just shows--again--why standing is about merits and not jurisdiction.

Limiting state-created danger and a different due process violation (Updated)

An interesting Fifth Circuit decision arising from a (notorious-at-the-time) 2015 incident in which a high-school football coach ordered two players to hit the referee. (One guess which Fifth Circuit state produced this case). The district court dismissed the claim against Coach Breed; it read the claim as invoking the state-created-danger theory (Breed increased the danger to the ref by ordering the players to hit him), which the Fifth Circuit does not recognize. The Fifth Circuit reversed, saying this is not an SCD case and therefore the plaintiff may have a viable due process claim on a different theory. Unfortunately, the path and conclusion are incoherent.

The court said SCD applies when the state actor "creates" a dangerous situation resulting in harm (to conditions or to third parties), but this does not include when the state actor orders or compels the third parties to engage in some conduct. This is a fine distinction that I am not sure works. What if Breed had told the players "unless you get completely out of control, Coach and I will not punish you?" if you hit the ref. Or what if the players discussed their plan to hit the ref while Breed was present and Breed said nothing, nodded in approval, or gave verbal assent ("OK")? Each of those facts can establish SCD, because the state actor creates or enhances the danger to the plaintiff by emboldening third parties by "approving" or "condoning" third-party misconduct or  by sending a message that a third-party can act with impunity. I do not see a meaningful difference between those cases and a direct command, order, or compulsion; if the former must be addressed as SCD (and rejected in the Fifth Circuit), so must the latter.

The court offered the difference that SCD requires deliberate indifference, while the claim here involves intentional harm. But DI is the legal standard and can be satisfied by the higher mens rea of intent to cause harm. And conduct short of a command can be done with the intention to inflict harm; the cops in Dwares wanted, if not intended, the skinheads to attack the protesters, even if they did not order them to attack.

If this is not an SCD case, what is the theory of liability? What did Breed* do that violates due process besides creating a dangerous condition? Is the act of ordering or commanding third persons to engage in misconduct an independent due process violation? If so, we are back to why orders/commands are different than approval and condonations; if the former are some unique violation independent, why not the latter, in which case what is left of SCD? Is it limited to orders to assault someone? But many SCD cases involve third-party assaults. Why is a command to third parties to assault different than approving a third-party assault (again, see Dwares). We return to that unexplained and unworkable distinction between ordering third-party misconduct and approving or condoning it.

[*] The court attempts to defend the distinction by arguing that Breed acted under color when he ordered the players to act, relying on close-nexus cases. But no one doubts that and it is beside the point. Those cases are about when private actors are deemed under color; they have nothing to do with whether the government actors who ordered the conduct are under color. In fact, it is beyond dispute that Breed acted under color--a government employee acting within his official position "on the clock" while performing his formal government duties. (Maybe if he had done this during the few minutes between the post-game handshake and getting on the bus he would have more luck).

The Fifth Circuit is the only court of appeals not to recognize SCD. I am all for ways around that problem. But some coherence would be nice.

Update: Following a series of email exchanges with a reader, I might see a workable basis for a distinction. It combines the under-color and liability elements and goes something like this: If the connection between the government actor and the private actor is sufficiently close that it places the private actor under color and subjects him to § 1983 suit**, the claim against the government actor rests on a direct violation; the government actor is, in essence, acting through his agent. If the connection is not sufficiently close as to to place the private actor under color, the government actor's liability must be based on SCD--the third party acted on his own as a private person, but the government actor did something to create or worsen the risk to the plaintiff at the third party's hands.

[**] If the plaintiff were to choose to sue him. Again, the ref did not sue the players here.

Thus, the coach is directly liable for ordering the players to hit the ref. He would be liable on an SCD theory if he  stood by and did nothing while the players discussed and planned to hit the ref. And we can have a debate about the case in which the coach said "we will not punish you if you hit the ref."

Not sure I buy it, but it makes some logical sense.

More zombie laws and litigation strategy

Dobbs has created a new puzzle with respect to zombie laws that I had not considered. It is usually obvious when a law has been de-zombified--the judicial constitutional precedent under which that law is invalid changed. Dobbs thus de-zombifies all abortion laws (subject perhaps to rational-basis scrutiny for extreme laws). But sometimes it is less obvious, because the Court suggests de-zombification through its reasoning and analysis, although the precise issue was not before the Court. So does the logic and reasoning of Dobbs, along with Thomas' concurrence, de-zombify other laws violating other substantive-due-process rights that it cast into (at least) some doubt?

Relatedly, how does that affect the posture in which the constitutional question will be litigated and resolved? Does the logic of Dobbs render a threat of renewed enforcement sufficiently likely or imminent to allow offensive pre-enforcement litigation to determine the state of judicial precedent and the constitutional validity and enforceability of the law. (Courts would call this whether the rights holder can show a sufficiently imminent injury for standing; I argue we should call this whether a constitutional violation has occurred or is likely to occur). Strict adherence to imminence (which courts follow for everything other than the First Amendment) limits offensive litigation, requiring rights holders to await actual renewed enforcementand challenge the law defensively.* At a minimum, they must wait longer to see if the state expresses some intent to renew enforcement based on its reading of Dobbs.

[*] Ex parte Young says rights holders need not wait, that it is unfair to force rights holders to violate the law at their peril and risk liability as a condition of litigating their constitutional rights. How to square that with Whole Women's Health, which I argue was correct? The problem in WWH was the lack of a target defendant and a governmental enforcer to enjoin.

Take Texas's sodomy law, which remains on the books. It is at least an open issue requiring new litigation whether constitutional precedent must change because Lawrence is incompatible with Dobbs. The question is whether that is sufficient to allow offensive pre-enforcement litigation or whether rights holders need some greater indication that the state intends to resume enforcing that law. Stated differently, can rights-holders, having read Dobbs and identified an open constitutional issue, initiate offensive litigation to declare the state of precedent and determine whether the sodomy law remains constitutionally invalid and unenforceable? Can Texas defeat such offensive litigation by insisting that it takes the Dobbs majority at its word, that it sees Lawrence as good law, and that it knows it cannot successfully enforce the law and has no intent to do so?

Does the answer change when the zombie post-dates the apparent change in precedent? Could that rights holder show imminence of enforcement more readily if the legislature enacts a new zombie? Returning to Texas' sodomy law--suppose the Texas legislature re-enacts a sodomy law post-Dobbs; does that allow a rights holder to argue that the state reads Dobbs as calling Lawrence into doubt and thus intends to enforce the new law (otherwise, why would it have bothered enacting it).

A separate strategic question: Should rights holders push the issue of what Dobbs did to Lawrence now or should they wait to see what states do? On one hand, there may be a benefit to striking now. People are paying attention and discussing Dobbs' effect on other rights; the charge of hypocrisy would land with the public (not that the Justices care) if the Court follows Dobbs to overrule Lawrence two years after insisting it would not. On the other, this is a frisky majority and rights holders may be wise not to test what it is willing to do.

Zombie Laws

We have a real-time illustration of zombie laws and judicial departmentalism. A zombie law remains, precedent changes, and new precedent reanimates the zombie, at least prospectively.* Texas announced it will begin enforcing its pre-Roe zombie, prompting clinics in the state to cease all abortions. This chart shows three other states with an intent to enforce zombies, although Wisconsin seems less unlikely to enforce.

[*] Jonathan Mitchell argues that retroactive application would be permissible. I doubt states will try that.

Meanwhile, other states are enjoined from enforcing abortion restrictions. Those states move to dissolve the injunction, citing Dobbs as the changed legal circumstance, and the district court will grant the injunction, making those laws enforceable.

Thoughts on fearing for the darkness

Some random thoughts on a legal earthquake.

• The opinion appears substantively unchanged from the leaked draft, other than responding to the other opinions and obvious proofreading. Clearly Kavanaugh was the Chief's target. We can read his concurrence as trying to carve a gentle and less-provocative middle ground between the majority's muscular overruling and the Chief's decide-nothing-more.

• This day has been coming like a slow-moving train since Election Night 2016, if not Election Night 2014 (when the Republicans regained the Senate and Justice Ginsburg had not resigned). I recommend Orin Kerr's Twitter thread that captures how Democrats/abortion-rights supporters went from "Garland-as-fifth-vote-to-secure-Roe" to Dobbs in less than a decade. Anyone (*cough* Susan Collins) who did not recognize this day as inevitable since Election Night 2016--or at least since Kennedy's resignation--is naive or ignorant (or, as someone suggested, lying about believing those assurances).

• Did the leak work? If the goal was to hold a shaky majority, yes; if the goal was to pressure someone to leave the majority, no. If the goal was to soften the opinion's effects by creating a distracting process story or softening the sting of the opinion, no; people seem pretty worked up and ready to protest and act, even if they saw this coming. It depends on if we find out who the leaker is and why they leaked.

• There is no easy answer to what happens next, but some things to watch:

    1) How much did this decision embolden anti-choice states? Do they ban abortion without exception or do they allow exceptions (life, health, rape, incest, a month of leeway)? Do they resume enforcing restrictive pre-Roe zombies? Do they go after pregnant people or only providers? Do they go after those who provide information and funding? How aggressively will prosecutors investigate and prosecute miscarriages and other "bad" behavior by pregnant people?

        Consider Arkansas' (now-valid) trigger law banning abortion with only a life-of-the-mother exception. Governor Asa Hutchinson suggested the state might add a rape-and-incest exception if Roe is overruled. This is a version of the dog-catching-the-car. States have performatively enacted extreme laws that would hurt millions, knowing they were unenforceable but allowed for political points. Now that those extreme laws are enforceable, Hutchinson realizes the immorality or unpopularity of the extreme and might walk it walk it back. Do other states follow suit and show restraint when their choices have real effects on real people or do they continue the race to the bottom because they can?

    2) Relatedly, does Dobbs embolden those states to go after the other rights that conservatives hate as much as abortion--same-sex marriage, contraception, sex? The assurances from Alito and Kavanaugh (and many who criticized Steve Vladeck and Leah Litman) focus on the wrong actors at the wrong time, at least for the moment. The action occurs in two other forums first: 1) Will states push the envelope in other areas--will they enact and enforce new laws banning purchase and use of contraception or whether states will begin enforcing existing zombie laws prohibiting sodomy (the Texas law at issue in Lawrence remains on the books) or same-sex marriage (same in many states); 2) What will restless lower-court judges do with the signal from Dobbs and from Thomas' concurrence if states get frisky--it is not hard to imagine a panel of the Fifth Circuit declaring valid a Louisiana ban on certain contraception. These steps are necessary before we see what the Justices will do. And that process could take several years, during which the make-up of the Court changes or people stop paying attention to Dobbs' "abortion-is-different" promises.

    3) It is nonsense to believe the courts are out of this area. The dissent shows why, as does this paper by David Cohen, Greer Donley, and Rachel Rebouche. These controversies extend beyond substantive due process to free speech, the right to travel, and other non-disfavored rights implicated in an abortion context. Scalia warned about the "abortion ad hoc nullifcation machine," in which the connection to abortion limits other, supposedly stronger rights (he complained about restrictions on clinic protesters). Will we see that in reverse--will the connection of other rights to the no-longer-favored abortion context limit those other rights? For example, will the Court allow states to sanction political expression concerning illegal-in-a-state abortions, remaining "scrupulously neutral" about abortion and allowing states to limit certain speech in the name of limiting (unprotected) abortion? Alito and Thomas have supported restrictions on speech with which they disagree; will others follow suit?

    4) How much teeth does rational-basis review have here, if a state goes to the extreme? Is it unreasonable to make a pregnant woman endanger her life or health in favor of a fetus? Is there any other context in which the law requires an ordinary person to risk her life for another?

• Biden's statement attempted to create a campaign issue. He called on Congress to codify Roe (whatever that means). He add that if Congress lacks the votes to do that (which it does), people must elect representatives who will, making. The question is how politically salient this is for the (apparent majorities) who support reproductive freedom--can the issue galvanize supporters to turn out in large numbers in the way it galvanizes opponents? Supporters have had Roe as the guardrail for 50 years. Does its actual loss awaken everyone to the ballot in a way its threatened loss (which was obvious in 2016) did not?